Opinion
NOT TO BE PUBLISHED
Super. Ct. No. RIF111048
APPEAL from a judgment of the Superior Court of Riverside County, Richard A. Erwood and James S. Hawkins, Judges. Affirmed.
McDONALD, J.
Marc Anthony Sturdivant appeals a judgment following his jury conviction on 15 counts of grand theft (Pen. Code, § 487, subd. (a)), four counts of petty theft with a prior theft conviction (§ 666), one count of attempted grand theft (§§ 487, subd. (a), 664), and one count of attempted petty theft (§§ 488, 664). The trial court found true allegations that Sturdivant had two prior serious or violent felony convictions within the meaning of the three strikes law (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(a)) and imposed a total sentence of 501 years to life with the possibility of parole. On appeal, Sturdivant contends: (1) the trial court abused its discretion by denying his Marsden motion for substitution of counsel; (2) the trial court abused its discretion under Evidence Code sections 1101 and 352 by admitting evidence of his prior conduct; and (3) his sentence is cruel and/or unusual punishment under the California and United States Constitutions.
All statutory references are to the Penal Code unless otherwise specified.
People v. Marsden (1970) 2 Cal.3d 118.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2001, Ronald Stuart, a recently retired Palm Springs police officer, saw Sturdivant at an office building at 777 East Tahquitz Canyon in Palm Springs. Stuart recognized Sturdivant from a 1998 investigation he conducted regarding a company named New Venture Dynamics (NVD). Stuart spoke with Melissa Powell, the building's property manager. She told him the office space used by Sturdivant was leased by Montenegro Enterprises, which purportedly was owned by Joe Montenegro. A note on the lease application stated that Powell could give the keys to "Ari Lawrence," who was stated to be Montenegro's son-in-law and the company's operating officer. Powell gave the office's keys to a person she knew as Lawrence. Montenegro Enterprises vacated its office space before November 6, 2001, without paying additional rent or returning the keys.
Sturdivant was known to use the aliases of "Sheridan Lawrence" and "Ari Lawrence."
Gloria Thompson owned a company that provided payroll services for Co-Venturer Partners (CVP). Sturdivant was known to her as "Sal Lawrence" and signed documents for CVP as "Sal Lawrence, partner." He told her he operated a partnership with his father-in-law.
Sturdivant hired people to work for CVP as telephone screeners and account executives (or telemarketers), including Angela Edmundson, a telephone screener, and Bradley Dodge and Robert Amick, account executives. In June 2002, Sturdivant hired Czersale Hilton as a telephone screener, but did not know Hilton was a Palm Springs police officer working undercover. Sturdivant told Hilton that CVP put business owners in touch with investors who wanted to invest in businesses. Sturdivant was solely in charge of the CVP office. He was known to CVP's employees as Lawrence, Jack Lawrence, Sal, or Ari.
The telephone screeners would call people who responded to newspaper advertisements placed by CVP and were seeking investors for their businesses or projects. The screeners would obtain information from the potential clients, send them a Confidential Business Profile form to complete, and encourage them to return it quickly. The screeners followed CVP scripts in conducting initial call screening and follow-up calls when potential clients did not return the Confidential Business Profile forms. The screeners were paid based in part on the number of Confidential Business Profile forms that were returned to CVP. On CVP's receipt of a completed Confidential Business Profile form, it was given to either Sturdivant or an account executive.
The account executives received client information obtained by the screeners and were encouraged to call potential clients and send them a Power Analysis Work Sheet within one hour. After sending it out, the account executives would contact the clients and persuade them to send money to CVP. Sturdivant gave the account executives a script for calling potential clients and told them to use it verbatim. The Power Analysis Work Sheets were prepared in advance with ratings of 8+ or 9, viability of the project and strength of interest shown, target date shown as soon as possible, "action steps" to be taken by CVP, and fees required to proceed (typically $500 to $1,000). They also stated two or more investors were interested in the client's business or project and had requested a copy of the Concept Paper be faxed to them "ASAP." Per Sturdivant's instructions, the account executives told potential clients CVP made its money by earning a "success fee bonus" of 5 percent of the investment amount funded by the investor to the client and its $500 fee was only an administrative fee to cover its in-house overhead costs. Sturdivant's handwriting appeared on all of the Power Analysis Work Sheets.
Per the script, the account executives were to tell potential clients: "The [work sheet] looks great--in fact Kelly has told me that two of the [Angels] have requested information from you ASAP."
The account executives then sent potential clients a Letter of Agreement and a Concept Paper Work Sheet and requested they return those documents quickly. Pursuant to the two-page Letter of Agreement, CVP would receive an "administrative fee" (typically $500) for developing a Concept Paper and Strategic Action Plan and a percentage (typically 5 percent) of the funds invested in the client's business. The Letter of Agreement stated: "If you have been promised a loan or funding of any kind, do not sign the agreement."
Clients would pay the "administrative fee" (typically $500) directly into a CVP bank account and then fax a copy of the deposit slip to CVP. The account executives were paid based on the amount of money they brought into CVP. If a potential client postponed making a decision, the account executives telephoned them and, following an advanced script, told the client an investor had just called that day about the client's business or project. Pursuant to the script, clients were further told CVP had an investor open house three or four times a year and the next one was the following Saturday. However, clients were given that same information year-round. When Amick questioned Sturdivant about that, Sturdivant stated that investor open houses were held on weekends or after hours. Amick never saw an investor open house.
After the client sent in money and a signed Letter of Agreement, the account executive's work was done. A telephone screener would send a Concept Paper Work Sheet to the client to complete. On its return, Mary Montenegro Sturdivant, Sturdivant's wife, would prepare a one-page Concept Paper. She also typed the client's name and amount of funding requested onto a Strategic Action Plan, which was then bound and sent to the client. Occasionally, CVP would also send the clients names of "investors," although the account executives never contacted those investors to determine whether they were interested in the client's business or project. The account executives never saw evidence of any actual investors. Sturdivant told the account executives the investors were his friends. Dodge had no knowledge of any of the clients' businesses or projects obtaining funding from CVP investors.
During a subsequent search of CVP's office, police did not find correspondence between CVP and any investors or documents showing background checks on any investors.
Sturdivant occasionally would handle telephone calls from clients who complained or asked for return of their money. At a time when Edmundson was the officer manager, one of her duties was to placate complaining clients by giving them names of additional "investors" from a list in a binder. Another office manager told Sturdivant how to purchase a mailing list off the internet, which he did and used the list to add "angels," or investors, to CVP's list.
Gerald Fox, an investigator for the Riverside County District Attorney's Office, found bank records for savings and checking accounts opened in mid-2001 in the name of Jose Montenegro, with a second name of CVP. In April 2002, new savings and checking accounts were opened in the names of "Mary and Homer... Sturivant [sic]," after which the initial accounts became inactive. Money was deposited into the savings accounts, then large amounts were either withdrawn or transferred to the checking accounts. About $240,000 was deposited into those accounts from September 2001 through July 2002, primarily in increments of $500. There were no deposits in large amounts consistent with payment of a percentage success fee bonus for obtaining investment funding of a client's business or project.
There was no evidence any of the investors listed in binders at CVP's office were interested in funding the businesses or projects of CVP's clients. Donald Miller had never heard of Sturdivant or CVP until he received his first Concept Paper and called its sender. Although Miller received between eight and 12 Concept Papers, he had no interest in investing in the described projects.
An information charged Sturdivant with 20 counts of grand theft (§ 487, subd. (a)), seven counts of petty theft with a prior theft conviction (§ 666), one count of attempted grand theft (§§ 487, subd. (a), 664), and one count of attempted petty theft (§§ 488, 664). The information also alleged Sturdivant had two prior serious or violent felony convictions within the meaning of the three strikes law (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(a)) and a prior conviction for which he had served a prison term within the meaning of section 667.5, subdivision (b).
At trial, the prosecution presented testimonies of witnesses substantially as described above and testimonies of certain CVP clients in support of specific counts alleged against CVP. Regarding count 2, Laso Bahari read a CVP advertisement in a Los Angeles newspaper. He faxed an application to CVP and then spoke with Dodge, who tried to pressure him to decide quickly. On March 27, 2002, CVP faxed Bahari a Power Analysis Work Sheet. He completed the Power Analysis Work Sheet and Concept Paper Work Sheet and faxed them to CVP. Because CVP represented it had two investors interested in his project, he deposited $500 into CVP's bank account and signed a Letter of Agreement. In return, CVP sent Bahari a Concept Paper and a brochure entitled Strategic Action Plan instructing him how to obtain money from investors. He did not receive any names of investors interested in his project. He did not hear from CVP again.
Similar testimony by other CVP clients was presented in support of other counts (i.e., counts 3 (James Bonner), 5 (Frankie Buckley), 6 (William Chu), 7 (Steven Gilman), 8 (Ernesto Gudino), 12 (Jeffrey Hull), 13 (Robert Kozich), 14 (Roberto Lima), 15 (Derrick Malone), 16 (Joseph Mejia), 17 (Donna Middleton), 18 (Henry Rosendo), 19 (Gary Rubino), 20 (Orlando Yabes), 22 (Rosie Marcuerquiaga), 24 (Michael Perretta), 25 (Matt Piro), and 26 (Benjamin Salisbury)). Sturdivant does not challenge the sufficiency of the evidence to support his convictions and, for purposes of this opinion, we need not recount the testimony of each witness.
Regarding count 28 (attempted petty theft), Palm Springs Police Sergeant Joseph Zingg testified that Ben Stafford, a retired Palm Springs police officer, worked undercover for the Palm Springs Police Department, posing as a potential client of CVP named "Ben Hugo," and called a telephone number listed in CVP's newspaper advertisements. Telephone calls between Stafford (aka Hugo) and CVP during October and November 2001 were monitored and recorded by police and then played for the jury at trial. On October 16, 2001, Stafford completed and faxed to CVP the Confidential Business Profile form. He then called CVP and spoke with "Lawrence," whose voice sounded like Sturdivant's voice. Sturdivant sent Stafford a Power Analysis Work Sheet, which gave his plan a 9+ rating and told him CVP had received many plans that had lower ratings and were rejected. CVP sent Stafford a second Power Analysis Work Sheet the following day, reducing its fee from $500 to $250. On October 18, Stafford told CVP he wanted to proceed, and it faxed a Letter of Agreement to him. On October 18, he sent $250 to CVP, signed the Letter of Agreement, and sent it back. CVP sent him a Concept Paper Work Sheet, which he completed and returned. CVP sent him a typed Concept Paper and Strategic Action Plan that described how he could obtain a capital investment by placing advertisements in the classified section of newspapers. During telephone calls in November 2001, Sturdivant gave Stafford names of purported investors. Investigator Fox subsequently attempted to locate those investors, but was unable to do so.
Regarding count 29 (attempted grand theft), Sergeant Zingg asked Debbie Robinson, an employee of a Bakersfield company, to respond to a CVP advertisement and complete the forms CVP sent her. She paid $500 to CVP, using police department money. In return, CVP sent her a Concept Paper and Strategic Action Plan.
The prosecution also presented evidence on Sturdivant's prior conduct. Stuart testified that Sturdivant used the name Michael Carrington during 1998 in connection with NVD. Sturdivant told Stuart that NVD acted as a go-between for people seeking to borrow money and people seeking to loan money. NVD placed a newspaper advertisement, stating: "Private money to start/expand your business" and listing its telephone number. Michael Zapata testified that in 1998 he saw an NVD advertisement and contacted the company. He spoke with Mike Carrington and another person named Kimball. NVD sent Zapata a Business Profile form, which he completed and returned. NVD told Zapata there were investors interested in his project and asked him to complete a Due Diligence Work Sheet form. NVD sent him an Investor Referral Agreement, a notice that a private investor group had expressed interest in his project, and a Capital Formation Procedure and Guarantee. Based on NVD's representations, Zapata paid it $275. In return, NVD sent him written information, names and addresses of purported investors, and business forms. When Zapata attempted to contact the investors, their telephone numbers were disconnected or their addresses did not exist. He never obtained any funding for his business.
Curtis Richmond testified that in 1998 he spoke by telephone many times with Michael Carrington at NVD after reading its newspaper advertisement that stated financing was available. Carrington had a distinctive voice with a Southern or Texas accent. Per NVD's request, Richmond completed and faxed the required paperwork to it. NVD responded almost immediately, informing him it could fund 85 percent of his project. Richmond sent money to, but never obtained any funding through, NVD.
Richmond also testified that his friend Robert Bass dealt with NVD in 2001. Bass asked Richmond to listen in on a telephone conversation he had with a man named Ari Lawrence, whose voice Richmond recognized as that of Carrington. Ari Lawrence used the same modus operandi as used when Richmond dealt with Carrington in 1998 (i.e., that he had contacts with a high probability of funding loans and he asked Bass for the same upfront money and forms to be completed).
Investigator Fox testified as a fraud expert regarding the similarities between the operations of NVD and CVP. The Business Profile NVD sent to potential clients was similar to CVP's Confidential Business Profile. Both NVD and CVP stated that everything needed to be done quickly or ASAP. Both NVD and CVP stated due diligence would be performed. The Due Diligence Work Sheet NVD used was similar to CVP's Power Analysis Work Sheet. Both NVD and CVP gave high ratings to clients' projects and stated they could connect clients with investors or venturer capitalists who were already interested in their projects. NVD's Investor Referral Agreement was similar to CVP's Letter of Agreement. Both documents required an administrative fee for processing services and provided for a percentage bonus fee to be paid NVD/CVP from the investment funds the clients received. However, those documents did not provide a mechanism for NVD or CVP to collect the percentage bonus fee. Fox found no evidence that any percentage bonus fee was ever paid to either NVD or CVP. Both NVD and CVP required clients to pay money to them in similar ways and required proof of payment. The documents clients received after paying money to NVD or CVP were similar. Both NVD and CVP gave clients a Concept Paper. Furthermore, NVD's Insider's Edge for Capital Formation was similar to CVP's Strategic Action Plan for Capital Formation.
Stuart also testified regarding the similarities between the operations of NVD in 1998 and CVP between 2001 and 2002. Both NVD and CVP solicited clients by placing newspaper advertisements offering investment capital. NVD and CVP used similar documents bearing similar titles.
Sturdivant testified in his defense, and denied intending to defraud or cheat anyone. Rather, it was his intent to help people with their business ventures. He testified that in 1991 he copyrighted a special report entitled Street-Smart Financing, which is very similar to the Strategic Action Plan he later used. He was in charge of NVD in 1998. He formed CVP with Jose Montenegro to sell his book, Street-Smart Financing. He also formed another company with Montenegro to sell trash bags made by disabled persons. He testified those businesses were owned solely by Montenegro because he (Sturdivant) was subject to a federal court order prohibiting him from owning a business in his name. After a dispute with Montenegro in April 2002, Sturdivant put CVP into a business owned solely by his wife, Mary Montenegro Sturdivant.
Sturdivant admitted he was the manager of CVP and made its day-to-day operational decisions. He testified he advertised for investors and that actual investors existed. He testified two investors were willing to review any project. Any dealings between his clients and the potential investors were independently conducted and his business was not involved. Sturdivant testified he gave a refund to any client who requested one, but none of his clients with whom he spoke requested a refund.
Sturdivant admitted being convicted in 1962 of passing a fraudulent instrument and writing three bad checks. He also admitted he had two forgery convictions in 1968 and had two theft convictions and one conviction of passing a bad check in 1971. In 1983, he was convicted of a securities law violation. Also in 1983, he was convicted of a theft over $200. In 1998, he pleaded guilty to a federal charge of illegal bank wiring. In 1998, he was convicted of grand theft relating to NVD's operations. Sturdivant admitted using the names Sheridan Lawrence, Marc Sturdivant, Homer Sturdivant, Jack Lawrence, Ari Lawrence, Sal Lawrence, and Michael Carrington.
After the trial court dismissed eight of the 29 counts alleged in the information pursuant to section 1118.1, the jury found Sturdivant guilty on 15 counts of grand theft (§ 487, subd. (a)), four counts of petty theft with a prior theft conviction (§ 666), one count of attempted grand theft (§§ 487, subd. (a), 664), and one count of attempted petty theft (§§ 488, 664). The trial court found true allegations that Sturdivant had two prior serious or violent felony convictions within the meaning of the three strikes law (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(a)), a prior theft conviction for which he served time in prison, and an additional prior theft conviction. The court denied Sturdivant's motion to dismiss the prior strike conviction allegations and imposed a total sentence of 501 years to life with the possibility of parole.
In so doing, the trial court sentenced Sturdivant to a consecutive 25-year-to-life term on each of the 20 felony counts, with a consecutive one-year enhancement for the prior prison conviction allegation. It imposed a concurrent six-month term for his attempted petty theft conviction.
Sturdivant timely filed a notice of appeal.
DISCUSSION
I
Denial of Sturdivant's Marsden Motion
Sturdivant contends the trial court abused its discretion by denying his Marsden motion for substitution of counsel.
A
On December 1, 2006, about one month before trial, Sturdivant requested a hearing to make a Marsden motion. On December 4, at a hearing in the absence of the prosecutor, the trial court (Riverside County Superior Court Judge Richard A. Erwood) asked Sturdivant to describe what was causing him a problem with his counsel. Before explaining his problems with his counsel, Sturdivant stated that he had "a couple of unresolved motions that I filed with the court," referring to a November 9 notice to the court regarding his counsel's violation of State Bar of California Rules of Professional Conduct and a November 20 notice of conflict between his counsel and him. Sturdivant asked the court: "May I inquire as to the status of those two motions?" The trial court replied: "I have not read any of the things that you have submitted. You are represented by counsel. [¶]... [¶] So I'm not going to read any of the matters that you are concerned about up until this point. Now, you can tell me... why you are dissatisfied with [your counsel]. You have been before this court before [¶]... [¶] -- on the same type of issues,... you have made complaints against other lawyers. [Your counsel] is your seventh lawyer."
Sturdivant explained to the court his specific concerns regarding his counsel. He stated his counsel had yet to meet with him to discuss his case. Sturdivant stated he was opposed to the prosecution's motion to conduct a conditional examination of a witness, to which his counsel, in violation of rules of the State Bar of California, agreed without notifying or meeting with him. Sturdivant also stated he wrote a letter to his counsel that he had documents relevant to the conditional examination of the witness, but his counsel never answered his letter or picked up those documents. He also stated he was unable to telephone his counsel because there had been a block placed on his counsel's telephone. He also stated his counsel did not inform him that a court date in his case had been changed. Furthermore, despite his request, his counsel did not ask the prosecution for a summary of discoverable items. Sturdivant also stated that because his counsel did not meet with him before the conditional examination of the witness, his counsel was ineffective during that examination.
Sturdivant also stated that on November 15 his counsel came to the jail to pick up his (Sturdivant's) documents, and told him: " '[Y]ou should never have filed that Marsden against me. You will regret it.' " Sturdivant stated that he interpreted his counsel's statement to be a threat. He stated he reported his counsel's statement (i.e., alleged threat) to the State Bar of California.
In response, Victor Torres, Sturdivant's counsel, stated he had been an attorney since 1985 and his practice consisted predominantly of criminal defense law cases, including serious felonies. Since he was appointed as Sturdivant's counsel on about September 8, he had received four banker boxes of discovery material, which he reviewed, researched, and organized into 21 binders. He had also received another banker box of copious notes from investigations requested by Sturdivant's previous attorneys. On November 15, he went to the jail to pick up Sturdivant's documents, but jail officials informed him Sturdivant refused to release those documents to him. Thereafter, Torres made an informal discovery request to the prosecution, asking for an additional copy of the transcript from Sturdivant's preliminary hearing. Torres represented to the trial court that he did not believe he had a prejudicial conflict of interest with Sturdivant. He argued Sturdivant's allegation that he filed a complaint against him with the State Bar of California was insufficient to create a prejudicial conflict of interest. Torres assured the trial court that he was prepared to go forward in representing Sturdivant at trial.
The trial court stated that it had granted the prosecution's motion for the conditional examination of the witness, which it could do over Sturdivant's objection, so Sturdivant's lack of consent to that examination was of no consequence. Furthermore, the court stated: "With respect to the complaints about the block on the phone and complaints to the [S]tate [B]ar, you have made those allegations against other lawyers who have represented you before. And this appears to be a repetition of what you have represented to the court of problems with counsel." The court concluded that his counsel was not ineffective during the conditional examination of the witness because he had obtained an admission by that witness that she had never met or talked to Sturdivant. The court denied Sturdivant's Marsden motion for substitution of counsel. At the conclusion of the hearing, Torres stated on the record that on every occasion he had given Sturdivant his business card, on which was listed a working telephone number and collect calls would be accepted.
B
When a criminal defendant requests appointment of new counsel on the ground that he or she is not being adequately represented by current counsel, a trial court must hold a Marsden hearing to allow the defendant to explain the reasons for the motion and specific instances of alleged inadequate representation. (People v. Crandell (1988) 46 Cal.3d 833, 854, disapproved on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) A defendant must show "either that appointed counsel is not providing adequate representation or 'that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.' [Citation.]" (People v. Mayfield (1997) 14 Cal.4th 668, 795.) The trial court has discretion whether to grant the Marsden motion following the hearing. (People v. Webster (1991) 54 Cal.3d 411, 435.) "The decision whether to grant a requested substitution is within the discretion of the trial court; appellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would 'substantially impair' the defendant's right to effective assistance of counsel. [Citation.]" (People v. Roldan (2005) 35 Cal.4th 646, 681, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Alternatively stated, "[o]nce the defendant is afforded an opportunity to state the reasons for discharging an appointed attorney, the decision to allow a substitution of attorney is within the discretion of the trial judge unless defendant has made a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation. [Citations.]" (People v. Crandell, supra, at p. 859, italics added.)
C
Sturdivant asserts the trial court abused its discretion by denying his Marsden motion because: (1) it did not read and consider the November 9 and 20, 2006, motions he filed with the court before he made his Marsden motion; and (2) his counsel's threat that he would regret making a Marsden motion and his filing of a complaint against his counsel with the State Bar of California based on that threat created an actual conflict of interest between his counsel and him.
At the beginning of the December 4 hearing, Sturdivant inquired regarding the status of the unresolved November 9 and 20 motions he had filed with the trial court. The court replied that it had not read them and was not required to do so because Sturdivant was represented by counsel on those dates. Sturdivant apparently does not argue that the trial court erred by not considering motions, notices, or other papers filed by him while he was represented by counsel. Nevertheless, based on the premise that he requested the court read and consider those motions in conjunction with and in support of his Marsden motion, Sturdivant argues the court abused its discretion by denying his Marsden motion without reading and considering those motions. However, the premise of that argument is not supported by the record. Based on our reading of the transcript of the December 4 hearing, Sturdivant first requested rulings by the trial court on his unresolved November 9 and 20 motions. In replying that it had not read them because Sturdivant was represented by counsel on those dates, the trial court in effect implicitly denied those motions without consideration of their merits. Sturdivant then proceeded to argue his Marsden motion and set forth his specific complaints regarding his counsel's representation of him. In so doing, to the extent Sturdivant referred to some of his counsel's actions or omissions that were also the subjects of his November 9 and 20 motions, he did not, either expressly or implicitly, incorporate those motions (or their underlying assertions) into his Marsden motion for substitution of counsel. We conclude the trial court did not err by not reading or considering those motions in deciding his Marsden motion.
On September 9, 2008, Sturdivant filed a motion to augment the appellate record with copies of: (1) Ex Parte Notice to the Court of Atty. V. Torres' Violation of State Bar Rules of Prof. Conduct and Motion for the Court to Take Corrective Action, dated November 9, 2006; and (2) Ex Parte Notice to the Court of Conflict Between Defendant and Atty. V. Torres, dated November 20, 2006. On September 18, 2008, this court issued an order reserving a ruling on that motion to augment until consideration of the appeal. We now grant that motion to augment and consider the November 9 and 20 documents together with other parts of the record on appeal.
Assuming arguendo that Sturdivant incorporated his November 9 and 20 motions into his Marsden motion by referring to them before arguing his Marsden motion or by discussing their underlying facts in arguing his Marsden motion, we nevertheless conclude the court was not required to read and consider those motions before deciding his Marsden motion. Sturdivant does not cite, and we are unaware of, any case setting forth the requirement that a trial court must read all written submissions by a defendant who makes a Marsden motion, even though the court allows that defendant to orally set forth his or her specific complaints regarding defense counsel's actions or omissions. Rather, as the People assert, a trial court satisfies its obligations under Marsden when it allows a defendant to articulate his or her reasons for dissatisfaction with defense counsel. (People v. Eastman (2007) 146 Cal.App.4th 688, 695.) Although a trial court must afford a defendant an opportunity to state the reasons for discharging an appointed attorney, there is no requirement that the court read all written submissions in support of a Marsden motion if the court gives the defendant a full opportunity to orally state his or her specific complaints regarding defense counsel that purportedly provide the grounds for substitution of counsel. None of the cases cited by Sturdivant are apposite to this case or adopt the proposition he suggests (i.e., requiring trial courts to read all of a defendant's written submissions in support of a Marsden motion). (See, e.g., People v. Whitt (1990) 51 Cal.3d 620, 658 [trial court did not abuse its discretion by considering defendant's handwritten document setting forth his complaints regarding his counsel]; People v. Memro (1995) 11 Cal.4th 786, 857; People v. Silva (2001) 25 Cal.4th 345, 367.)
In any event, the court was aware of Sturdivant's asserted filing of a complaint against his counsel with the State Bar of California and presumably considered that fact in finding there was no actual conflict of interest that would preclude his counsel from effectively representing him. (Cf. People v. Horton (1995) 11 Cal.4th 1068, 1106 ["the trial court properly determined, in the exercise of its discretion, that the filing of the [malpractice] complaint [against his counsel] did not create any actual conflict of interest necessitating the withdrawal of appointed counsel"]; People v. Barnett (1998) 17 Cal.4th 1044, 1110 [trial court could properly find no conflict of interest despite defendant's service of notice of malpractice action against his counsel]; People v. Smith (1993) 6 Cal.4th 684, 696 ["a defendant may not force the substitution of counsel by his own conduct that manufactures a conflict"].)
The trial court was not required to question his counsel regarding the merits of any pending complaint filed against him with the State Bar of California or its impact on his continued representation of Sturdivant. Rather, in denying Sturdivant's Marsden motion, the trial court presumably, and properly, considered the impact of that complaint on the attorney-client relationship, together with defense counsel's stated belief that such complaint was insufficient to create a prejudicial conflict of interest.
Sturdivant also asserts the trial court erred by not asking his counsel about Sturdivant's complaint that he had threatened him. Sturdivant stated his counsel told him: " '[Y]ou should never have filed that Marsden against me. You will regret it.' " Sturdivant stated that he interpreted that statement as a threat. Although Sturdivant correctly notes the court did not question his counsel regarding whether he made that statement, he does not persuade us the trial court erred by not doing so. Rather, based on our review of the record, we presume the court accepted as true Sturdivant's version of his counsel's statement. (Cf. People v. Eastman, supra, 146 Cal.App.4th at p. 695.) Nevertheless, the court was not required to, and presumably did not, accept Sturdivant's interpretation of that statement as a threat. The trial court could have interpreted that vague statement by Sturdivant's counsel as stating his belief that Sturdivant would regret filing the Marsden motion, possibly because were it granted Sturdivant may not obtain substituted counsel with as much experience and ability (as Sturdivant's counsel). The court presumably did not interpret that statement as a threat by his counsel to take adverse action against Sturdivant (e.g., providing ineffective representation) because of his filing of a Marsden motion. Rather, his counsel's statement was presumably, and properly, interpreted by the court as, at most, constituting "heated words" between Sturdivant and his counsel that did not necessarily cause an actual, irreconcilable conflict of interest necessitating substitution of counsel. (People v. Smith, supra, 6 Cal.4th at p. 696 ["[a]lthough clearly some heated words were spoken between client and attorney during the events preceding the guilty plea, that alone does not require a substitution of counsel absent an irreconcilable conflict"].)
Sturdivant did not show the failure to remove his counsel and appoint replacement counsel would substantially impair his right to effective assistance of counsel or would likely result in constitutionally inadequate representation. (People v. Roldan, supra, 35 Cal.4th at p. 681; People v. Crandell, supra, 46 Cal.3d at p. 859.) The trial court did not abuse its discretion by denying Sturdivant's Marsden motion for substitution of counsel.
II
Admission of Evidence on Sturdivant's Prior Conduct
Sturdivant contends the trial court abused its discretion under Evidence Code sections 1101 and 352 by admitting evidence of his prior conduct because it was inadmissible character or propensity evidence.
A
Before trial, the prosecutor moved for permission to present evidence under Evidence Code section 1101, subdivision (b), of Sturdivant's prior conduct involving NVD, which conduct was similar to his instant charged offenses involving CVP. Sturdivant objected to admission of that evidence as irrelevant, unduly prejudicial, and insufficiently similar to the instant charged offenses. The trial court granted the prosecutor's motion, concluding the proffered evidence was admissible under Evidence Code sections 1101, subdivision (b), and 352 to prove identity, intent, and common plan. The court stated in part: "[A]ssuming [the prosecutor] has witnesses it sounds like he would be, under the cases, allowed to put in [Evidence Code section] 1101[, subdivision] (b) evidence. Not the fact of the conviction but the underlying facts of the matter, either to show any number of things, similar crime, identity, even intent." During trial, the prosecutor presented extensive evidence on Sturdivant's prior conduct involving NVD, some of which is described above in the factual background section (e.g., testimonies of Stuart, Richmond, Zapata, and Fox).
B
Evidence Code section 1101, subdivision (a), states character or propensity evidence is inadmissible unless otherwise provided:
"Except as provided in this section and in [Evidence Code] Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."
However, Evidence Code section 1101, subdivision (b), provides an exception to that general rule of exclusion, stating:
"Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act." (Italics added.)
Evidence Code section 1101, subdivision (b), clarifies that the general rule of exclusion of character evidence "does not prohibit admission of evidence of [prior acts] when such evidence is relevant to establish some fact other than the [defendant's] character or disposition." (People v. Ewoldt (1994) 7 Cal.4th 380, 393, fn. omitted (Ewoldt).)
In Ewoldt, the California Supreme Court discussed the rules on admissibility of evidence on a defendant's prior acts:
"Subdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of [prior acts], to prove the conduct of that person on a specified occasion. Subdivision (b) of [Evidence Code] section 1101 clarifies, however, that this rule does not prohibit admission of evidence of [prior acts] when such evidence is relevant to establish some fact other than the person's character or disposition." (Ewoldt, supra, 7 Cal.4th at p. 393, fn. omitted.)
The court noted that evidence of prior acts "is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense." (Id. at p. 394, fn. 2.) Evidence of a defendant's prior acts is relevant to show the defendant's intent where the prior acts and the charged offense are sufficiently similar to support the inference that the defendant probably harbored the same intent in each instance. (Id. at p. 402; People v. Robbins (1988) 45 Cal.3d 867, 879, superseded by statute on another ground as noted in People v. Jennings (1991) 53 Cal.3d 334, 387, fn. 13.) "The least degree of similarity (between the [prior acts] and the charged offense) is required in order to prove intent. [Citation.]" (Ewoldt, at p. 402.) Ewoldt noted the recurrence of similar results tends to disprove accident, inadvertence, self-defense, good faith or other innocent mental state, and tends to prove the presence of criminal intent. (Ewoldt, supra, 7 Cal.4th at p. 402.)
Greater degrees of similarity are required to show common plan or design and identity. (Ewoldt, supra, 7 Cal.4th at pp. 402-403.)
Although evidence of prior acts may be admissible under Evidence Code section 1101, subdivision (b), to prove criminal intent, identity, or common plan, that evidence may nevertheless be inadmissible under Evidence Code section 352 if it is unduly prejudicial. A determination of inadmissibility of evidence under Evidence Code section 352 requires the balancing of the probative value of the evidence against its potential prejudicial effect. (Ewoldt, supra, 7 Cal.4th at pp. 404-405.)
Evidence Code section 352 states: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
"On appeal, the trial court's determination of this issue [i.e., admissibility under Evidence Code section 1101, subdivision (b)], being essentially a determination of relevance, is reviewed for abuse of discretion. [Citations.]" (People v. Kipp (1998) 18 Cal.4th 349, 369.) A trial court's resolution of the weighing process under Evidence Code section 352 is also reviewed for abuse of discretion. (Kipp, at p. 371.) "A court abuses its discretion when its ruling 'falls outside the bounds of reason.' [Citation.]" (Ibid.)
C
Sturdivant asserts the trial court abused its discretion by admitting evidence on his prior conduct involving NVD because that conduct was not sufficiently similar to the instant charged offenses. The trial court concluded Sturdivant's prior conduct was admissible under Evidence Code section 1101, subdivision (b), to show his intent in committing the instant charged offenses. In so concluding, the court implicitly found Sturdivant's prior conduct was sufficiently similar to the instant charged offenses to support the inference that he probably harbored the same intent in each instance. (Ewoldt, supra, 7 Cal.4th at p. 402.) Based on our review of the record, we conclude the evidence on Sturdivant's prior conduct involving NVD was sufficiently similar, if not almost identical, to the instant charged offenses involving CVP to support an inference he probably had the same intent. Both NVD and CVP solicited potential clients by placing newspaper advertisements offering to find capital funding. Both NVD and CVP used similar documents and procedures in attracting and securing clients and their money. Both NVD and CVP falsely represented to potential clients that they had investors currently interested in clients' particular businesses or projects. Both NVD and CVP communicated with potential and actual clients only by telephone or in writing and never met in person with them. Both NVD and CVP urged potential clients to act quickly. Both NVD and CVP consistently gave potential clients' projects high ratings despite conducting no (or minimal) substantive review. Sturdivant's prior conduct involving NVD was sufficiently similar to the instant charged offenses involving CVP as to support the inference that he probably harbored the same intent in each instance. (Ibid.) The fact NVD, unlike CVP, did not use the term "angels" when referring to investors and guaranteed financing for potential clients' projects does not show Sturdivant's conduct involving NVD and CVP was so dissimilar to preclude a rational inference that he probably harbored the same intent in each instance. People v. Kronemyer (1987) 189 Cal.App.3d 314 and the other cases cited by Sturdivant are inapposite and do not persuade us to conclude otherwise.
Sturdivant also asserts the trial court abused its discretion under Evidence Code section 352 by admitting evidence of his prior conduct involving NVD, which had only minimal (at most) probative value but highly prejudicial impact. In admitting the evidence on Sturdivant's prior conduct, the trial court implicitly found the evidence was not inadmissible under Evidence Code section 352 after conducting the appropriate required weighing. Because of the high degree of similarity between the NVD and CVP schemes, evidence on Sturdivant's prior conduct involving NVD had substantial, if not great, probative value in proving he had the same intent in committing the instant charged offenses. The prosecutor's pretrial statement that such evidence "adds minimally to the case" was made in the course of assuring the trial court that the prosecution's case would not require an inordinate amount of trial time to prove Sturdivant's prior conduct. In any event, even minimal probative value regarding Sturdivant's intent in committing the instant offenses may be sufficient if that probative value is not substantially outweighed by the probability that its admission would cause undue prejudice. (Evid. Code, § 352.) Evidence of Sturdivant's prior conduct involving NVD was not "significantly more inflammatory" than evidence of the instant offenses. (People v. Kipp, supra, 18 Cal.4th at p. 372.) Rather than causing undue prejudice, the substantial probative value on the issue of intent based on the high degree of similarity between NVD's and CVP's schemes likely caused only minimal prejudice to Sturdivant (i.e., proof of his intent and guilt of the charged offenses rather than proof of his character or propensity to commit crime). (People v. Karis (1988) 46 Cal.3d 612, 638.) Furthermore, the trial court could have reasonably concluded the prosecution would not require undue consumption of trial time to prove Sturdivant's prior conduct involving NVD and there was little likelihood of confusion of the issues. (Evid. Code, § 352.) We conclude the trial court did not abuse its discretion under Evidence Code sections 1101, subdivision (b), and 352 by admitting evidence of Sturdivant's prior conduct involving NVD.
Karis stated: " '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Karis, supra, 46 Cal.3d at p. 638.)
To the extent Sturdivant contends the trial court erred in instructing the jury regarding its consideration of "other offenses" evidence, he waived that contention below by not objecting to, or requesting modification of, that instruction and also waived that contention on appeal by not presenting a substantive argument including legal analysis on that contention.
III
Cruel and/or Unusual Punishment
Sturdivant contends his sentence of 501 years to life in prison is cruel and/or unusual punishment under the California and United States Constitutions, arguing his sentence was disproportionate to his offenses because the instant offenses were nonviolent and the numerous offenses he committed during the previous 40 years were mostly nonviolent.
A
The jury found Sturdivant guilty on a total of 20 felony counts and one misdemeanor count.
The jury found him guilty on 15 counts of grand theft (§ 487, subd. (a)), four counts of petty theft with a prior theft conviction (§ 666), one count of attempted grand theft (§§ 487, subd. (a), 664), and one count of attempted petty theft (§§ 488, 664).
In a bifurcated trial, the trial court found true allegations that Sturdivant had two prior serious or violent felony convictions within the meaning of the three strikes law (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(a)); the prior convictions consisted of a 1971 rape conviction and a 1971 conviction for assault with intent to commit rape. The court also found true allegations he had a prior theft conviction for which he served time in prison, and had an additional prior theft conviction. The court denied Sturdivant's motion to dismiss the prior strike conviction allegations.
At the sentencing hearing, the trial court considered the probation report setting forth the probation officer's sentencing recommendation. The trial court imposed a total sentence of 501 years to life in prison with the possibility of parole. The court sentenced Sturdivant to a consecutive 25-year-to-life term on each of the 20 felony counts, with a consecutive one-year enhancement for the prior prison conviction allegation. It imposed a concurrent six-month term for his attempted petty theft conviction.
B
Cruel and/or unusual punishment is prohibited by the Eighth Amendment of the United States Constitution and article I, section 17 of the California Constitution. "Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment. [Citations.]" (People v. Martinez (1999) 76 Cal.App.4th 489, 496.)
The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (Italics added.) It applies to California pursuant to the due process clause of the Fourteenth Amendment.
Although the Eighth Amendment of the United States Constitution prohibits "cruel and unusual" punishments, article I, section 17 of the California Constitution provides: "Cruel or unusual punishment may not be inflicted...." (Italics added.) In disposing of this issue, we do not attribute any significance to the difference in language.
C
Under the California Constitution, punishment is cruel or unusual if it is so disproportionate to the crime committed that it "shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) Lynch analyzed three factors in determining whether a sentence is cruel or unusual: (1) the nature of the offense and the offender, with particular regard to the degree of danger both present to society; (2) a comparison of the challenged penalty with the punishment prescribed in the same jurisdiction for other more serious offenses; and (3) a comparison of the challenged penalty with the punishment prescribed for the same offense in other jurisdictions. (Id. at pp. 425-427.) California appellate courts have consistently concluded that punishment of recidivist offenders under the three strikes law does not constitute cruel or unusual punishment under the California Constitution. (See, e.g., People v. Sullivan (2007) 151 Cal.App.4th 524, 573 [210 years to life]; People v. Romero (2002) 99 Cal.App.4th 1418, 1431-1433 [25 years to life]; People v. Mantanez (2002) 98 Cal.App.4th 354, 358-359 [25 years to life]; People v. Byrd (2001) 89 Cal.App.4th 1373, 1382-1383 [indeterminate term of 444 years to life and determinate term of 115 years]; People v. Cuevas (2001) 89 Cal.App.4th 689, 702-705 [85 years to life]; People v. Cortez (1999) 73 Cal.App.4th 276, 284-286 [25 years to life]; People v. Martinez (1999) 71 Cal.App.4th 1502, 1509-1517 [25 years to life]; People v. Cline (1998) 60 Cal.App.4th 1327, 1337-1338 [25 years to life]; People v. Goodwin (1997) 59 Cal.App.4th 1084, 1093-1094 [25 years to life]; People v. Cooper (1996) 43 Cal.App.4th 815, 825-828 [25 years to life]; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1624, 1630-1631 [29 years to life]; People v. Ingram (1995) 40 Cal.App.4th 1397, 1413-1417 [61 years to life], disapproved on another ground in People v. Dotson (1997) 16 Cal.4th 547, 560, fn. 8; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1130, 1134-1137 [indeterminate term of 375 years to life and determinate term of 53 years].)
Applying Lynch to the circumstances in this case, we first consider the nature of the offenses and the offender, with particular regard to the degree of danger they present to society. (In re Lynch, supra, 8 Cal.3d at p. 425.) We consider the offenses in the abstract and as committed, evaluating "the totality of the circumstances surrounding the commission of the offense[s] in the case at bar, including such factors as [their] motive, the way [they were] committed, the extent of the defendant's involvement, and consequences of his acts." (People v. Dillon (1983) 34 Cal.3d 441, 479.) With respect to Sturdivant's offenses, we note that they are serious, both in the abstract and in the circumstances of this case. Sturdivant was convicted of 15 counts of grand theft (§ 487, subd. (a)), four counts of petty theft with a prior theft conviction (§ 666), one count of attempted grand theft (§§ 487, subd. (a), 664), and one count of attempted petty theft (§§ 488, 664). In the abstract, those offenses involve an unlawful taking, or attempted taking, of property of substantial value from victims. In general, most of those felony offenses (i.e., grand theft) can be viewed as a more egregious offense than petty theft and drug possession. As to the other felony offenses (i.e., attempted grand theft and petty theft with a prior theft conviction), they can be viewed as no less egregious than petty theft and drug possession. Application of the three strikes law to the offenses of petty theft and drug possession has been upheld. (People v. Romero, supra, 99 Cal.App.4th at pp. 1431-1433 [petty theft]; People v. Mantanez, supra, 98 Cal.App.4th at pp. 359-367 [drug possession]; People v. Martinez, supra, 71 Cal.App.4th at pp. 1509-1511 [drug possession].)
For purposes of this discussion, we need not consider further Sturdivant's conviction for attempted petty theft, a misdemeanor resulting in a concurrent 180-day term.
Furthermore, in the particular circumstances of this case, the theft and attempted theft offenses, as committed by Sturdivant, were particularly egregious. Over a period of many months, Sturdivant carried out a sophisticated scheme involving CVP, using employees or independent contractors who unwittingly helped carry out his scheme, to defraud trusting persons who responded to his newspaper advertisements offering money to assist in their business projects. Pursuant to his calculated scheme, almost identical to a previous scheme he used with NVD, potential clients were systematically told their projects were highly rated and investors were already interested in their projects. They were pressured into acting quickly and paying CVP a processing fee for CVP's preparation of canned documents that purportedly would help them apply for funding from those investors, who, in fact, did not exist or were never interested in the projects. As a result of his offenses, many persons were financially and, presumably, psychologically harmed. The high degree of planning and criminal intent involved in Sturdivant's offenses and the great number of persons harmed by his offenses show he presents a substantial danger to society. Although Sturdivant notes the total amount of money lost by the victims of his instant offenses was less than $10,000, the arguably low total amount of damages does not show he is not a substantial danger to society or that his sentence is cruel or unusual, particularly when weighed together with the great number of victims of his offenses. Sturdivant's felony offenses, in the abstract and as committed, present a substantial degree of danger to society. (In re Lynch, supra, 8 Cal.3d at p. 425; People v. Dillon, supra, 34 Cal.3d at p. 479.)
In considering the nature of the offender, we consider whether the punishment is grossly disproportionate to the offender's individual culpability, as shown by his or her age, prior criminality, personal characteristics, and state of mind. (People v. Dillon, supra, 34 Cal.3d at p. 479.) In this case, Sturdivant's long criminal history of both violent and nonviolent crimes shows he presents a substantial danger to society. Sturdivant began committing crimes in 1961. The probation officer's report shows that before Sturdivant committed the instant offenses he had committed about 23 offenses in Texas, California, and Arizona from 1961 through 2001. Although his recidivist criminal history primarily consists of nonviolent offenses (e.g., forgery, passing bad checks, and theft), it includes two violent offenses committed in 1970 (i.e., rape and assault with intent to commit rape). Sturdivant was about 60 years old at the time of the instant offenses in 2001 and 2002 (and 65 years old at the time of sentencing), eliminating youth as a possible mitigating factor. Although his instant offenses were nonviolent crimes that typically present a lesser degree of danger to society than violent offenses, the large number and sophisticated nature of those nonviolent offenses show he presents a significant danger to society. Furthermore, as noted above, he committed two prior violent felony offenses in 1970. The three strikes law does not apply only to violent recidivists, but also applies to offenders who have prior serious felonies within the meaning of the three strikes law. (§ 667, subd. (d)(1).) Enhanced punishment for nonviolent recidivists is not unconstitutional. (People v. Ingram, supra, 40 Cal.App.4th at p. 1415; Rummel v. Estelle (1980) 445 U.S. 263, 275, 284-285.)
In this case, Sturdivant's extensive criminal history of violent and nonviolent offenses committed over a period of 40 years (even assuming most of his past offenses were remote in time), together with the failure of past incarcerations to prevent him from committing future offenses, show he is a career recidivist who presents a significant danger to society. Considering the nature of the offenses and offender, we conclude that under current law Sturdivant's sentence is not shocking or disproportionate to the offenses he committed.
On the second Lynch factor, Sturdivant notes his sentence is identical to the sentence for first degree, noncapital murder. Although we do not doubt first degree murder is a more serious offense than the offenses committed in this case, a sentence is not grossly disproportionate merely because it carries the same sentence as, or a greater sentence than, a more serious crime. The Lynch court noted that a challenged sentence may be suspect if "more serious crimes [are] punished less severely than the offense in question." (In re Lynch, supra, 8 Cal.3d at p. 426.) However, in the case of the "more serious" murder offense, the applicable sentence does not consider the defendant's history of recidivism. If, for example, a defendant convicted of first degree murder had two prior strikes under the three strikes law, that defendant generally would not receive a lesser sentence than that imposed on Sturdivant based on his recidivism. Likewise, to the extent Sturdivant cites other "more serious" recidivist offenses that carry lesser sentences (e.g., § 451.1, subd. (a)(1) [arson with a prior arson conviction]), defendants who commit such offenses and have two prior strikes under the three strikes law generally do not receive a lesser sentence than that imposed on Sturdivant. Accordingly, Sturdivant does not show his sentence in this case is grossly disproportionate to the punishment imposed for other offenses to which the three strikes law may apply.
On the third Lynch factor, Sturdivant notes that other jurisdictions with recidivist or "three-strikes" laws do not impose the same penalty for any current felony, but rather consider the nature of the current offense, and allow flexibility in sentencing absent under California's three strikes law. However, "[t]hat California's punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. It does not require 'conforming our Penal Code to the "majority rule" or the least common denominator of penalties nationwide.' [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct." (People v. Martinez, supra, 71 Cal.App.4th at p. 1516; see also People v. Romero, supra, 99 Cal.App.4th at p. 1433.)
Considering the three Lynch factors in the circumstances of this case, we conclude Sturdivant's sentence does not shock the conscience or offend fundamental notions of human dignity. (In re Lynch, supra, 8 Cal.3d at p. 424.) Likewise, contrary to Sturdivant's assertion, the sentence imposed for his instant offenses based on his two prior strike convictions does not constitute an extreme case outside the spirit of the three strikes law. Accordingly, Sturdivant's sentence of 501 years to life in prison pursuant to the three strikes law does not constitute cruel or unusual punishment under the California Constitution.
Nevertheless, we cannot disagree with Justice Mosk's observation that grossly excessive sentences no human being can potentially serve may be gratuitously extreme and demean the government that inflicts them as well as the defendants on whom they are inflicted. (People v. Deloza (1998) 18 Cal.4th 585, 600-602 (conc. opn. of Mosk, J.).) Accordingly, although we cannot conclude Sturdivant's sentence of 501 years to life in prison with the possibility of parole (which, as Sturdivant asserts, is in effect a life sentence without the possibility of parole) is unconstitutionally cruel or unusual, its length far exceeds the lifespan of human beings and verges on the absurd, potentially causing a mockery of our criminal justice system in the eyes of our citizenry. To that extent, such an extreme sentence does not appear to further the purposes of our criminal justice system.
D
Under the Eighth Amendment of the United States Constitution, a term of years is cruel and unusual punishment if it is grossly disproportionate to the crime committed. (Lockyer v. Andrade (2003) 538 U.S. 63; Solem v. Helm (1983) 463 U.S. 277, 284, 290.) "The Eighth Amendment, which forbids cruel and unusual punishments, contains a 'narrow proportionality principle' that 'applies to noncapital sentences.' [Citations.]" (Ewing v. California (2003) 538 U.S. 11, 20 (plur. opn. of O'Connor, J.), quoting Harmelin v. Michigan (1991) 501 U.S. 957, 996-997 (conc. opn. of Kennedy, J.).) Justice O'Connor's plurality opinion in Ewing noted: "Recidivism has long been recognized as a legitimate basis for increased punishment." (Ewing, supra, at p. 25.) In considering the constitutionality of the defendant's sentence of 25 years to life in prison under California's three strikes law, Justice O'Connor noted the defendant was convicted of felony grand theft for stealing three golf clubs worth about $1,200. (Id. at p. 28.) Although grand theft is a "wobbler" offense that can be treated as either a felony or a misdemeanor, the trial court did not exercise its discretion to treat it as a misdemeanor. (Id. at pp. 28-29.) Considering the gravity of that defendant's instant offense and his long history of felony recidivism, Justice O'Connor concluded the defendant's sentence was not grossly disproportionate and therefore did not constitute cruel and unusual punishment under the Eighth Amendment of the United States Constitution. (Id. at pp. 29-31.) She stated: "[The defendant's sentence under the three strikes law] reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated." (Id. at p. 30.)
Applying Justice O'Connor's plurality opinion in Ewing to this case, we similarly conclude Sturdivant's sentence under the three strikes law is not grossly disproportionate to his instant offenses in consideration of his recidivism and therefore does not constitute cruel and unusual punishment under the Eighth Amendment of the United States Constitution. As we discussed above, Sturdivant's instant offenses were serious, involved a large number of victims, and posed a substantial danger to society. Furthermore, Sturdivant has a long criminal history of similar offenses, making him an appropriate candidate for sentencing under the three strikes law. He repeatedly has committed prior serious or violent felony offenses for which he has been incarcerated. Unlike the grand theft offense in Ewing, Sturdivant's instant grand theft offenses involved a more sophisticated scheme to defraud a large number of victims, reflecting a significant danger to society. Because Sturdivant's instant offenses and criminal history are not less egregious than or substantially different from the defendant's offense and criminal history in Ewing, we apply Justice O'Connor's reasoning in Ewing to this case to support our conclusion that Sturdivant's sentence under the three strikes law does not violate the Eighth Amendment's prohibition against cruel and unusual punishments. (Ewing v. California, supra, 538 U.S. at pp. 29-31 (plur. opn. of O'Connor, J.); see also Rummel v. Estelle, supra, 445 U.S. at pp. 264-266, 285 [upheld recidivist defendant's life sentence for instant offense of obtaining $120 by false pretenses].)
IV
Consecutive Sentencing Without Jury Findings
Sturdivant contended in his opening brief that the trial court violated the United States Constitution by imposing consecutive sentencing based on factors that were not found by the jury beyond a reasonable doubt. However, since that opening brief was filed, the United States Supreme Court issued its opinion in Oregon v. Ice (2009) ___ U.S. ___ [129 S.Ct. 711, 714-715, 172 L.Ed.2d 517], holding the Sixth Amendment of the United States Constitution does not apply to sentencing schemes that allow judges, and not juries, to find certain facts for imposing consecutive sentences. In his reply brief, Sturdivant withdrew this contention and we do not address it.
DISPOSITION
The judgment is affirmed.
I CONCUR: McCONNELL, P. J., HUFFMAN, J.